Citation Nr: 9816966
Decision Date: 06/02/98 Archive Date: 06/15/98
DOCKET NO. 94-12 109 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of service connection for a right knee
disability.
2. Entitlement to an increased rating for left knee
chondromalacia, currently evaluated at 10 percent disabling.
3. Entitlement to an increased rating for pelvic
inflammatory disease with associated tenderness, currently
evaluated at 10 percent disabling.
4. Entitlement to special monthly compensation on account of
loss of use of a creative organ.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1982 to April
1985.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 1993 decision of the Roanoke,
Virginia, Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied the veteran’s application to reopen
a claim of service connection for a right knee disability.
By the same decision, the RO also granted a 10 percent rating
for service-connected left knee chondromalacia, confirmed and
continued a 10 percent rating for pelvic inflammatory
disease, and denied entitlement to special monthly
compensation on account of loss of use of a creative organ.
Previously, a claim of service connection for a right knee
disability had been denied by a RO decision entered in August
1991. However, the veteran did not appeal that decision and
it became final. See 38 C.F.R. §§ 20.302, 20.1103 (1997).
Consequently, an initial question that must be addressed by
the Board is whether the previously denied claim of service
connection for a right knee disability ought to be reopened.
38 U.S.C.A. § 5108 (West 1991).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and her representative contend, in essence, that
new and material evidence has been submitted sufficient to
reopen the claim of entitlement to service connection for a
right knee disability. It is maintained that the veteran’s
right knee disability either began during service, or was
caused or made worse by her service-connected left knee
chondromalacia. Additionally, the veteran asserts that her
left knee chondromalacia has become worse over time and
warrants an increased schedular rating. She contends that
she experiences chronic pain and swelling, and that her
activities are thereby restricted. She specifically cites
problems with prolonged periods of walking, sitting, and
standing, as well as climbing stairs. Additionally, it is
argued that the veteran’s service-connected gynecological
disorder has become worse over time, being manifested by
chronic pain, and prolonged and heavy bleeding during
menstruation and thus warrants an increased rating.
Furthermore, the veteran asserts that her gynecological
disorder has made it impossible for her to have children.
She therefore contends that entitlement to special monthly
compensation on account of loss of use of a creative organ is
warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted sufficient to reopen the veteran's claim
of entitlement to service connection for a right knee
disability. It is also the decision of the Board that the
preponderance of the evidence is against the claim for
special monthly compensation on account of loss of use of a
creative organ. However, it is the decision of the Board
that the preponderance of the evidence favors the award of a
30 percent rating for service-connected pelvic inflammatory
disease.
(Consideration of the claim for an increased rating for a
left knee disability is deferred pending completion of the
development sought in the REMAND that follows this decision.)
FINDINGS OF FACT
1. The RO denied a claim of service connection for a right
knee disability in an August 1991 decision. The veteran was
advised of this decision and of her appellate rights in a
letter sent to her last known address in September 1991.
2. The veteran did not file a timely appeal with the August
1991 denial of her claim of service connection for a right
knee disability.
3. The evidence added to the record since the August 1991
decision does not raise a reasonable possibility of changing
the outcome of the prior final denial.
4. The veteran’s pelvic inflammatory disease is manifested
by chronic pelvic pain, vaginal discharge, and menorrhagia
that have not been controlled by treatment.
5. The veteran does not have loss of use of an ovary or her
uterus.
CONCLUSIONS OF LAW
1. Evidence submitted since the RO's final August 1991
decision in support of an attempt to reopen a claim of
entitlement to service connection for a right knee disability
is not new and material; the claim is therefore not reopened.
38 U.S.C.A. §§ 1101, 1110, 1112, 5108, 7105 (West 1991);
38 C.F.R. §§ 3.104(a), 3.156, 3.303, 3.307, 3.309 (1997).
2. An increased (30 percent) rating for pelvic inflammatory
disease is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.7, 4.116, Diagnostic Code 7614 (1997).
3. The veteran has not lost the use of a creative organ due
to service-connected disability. 38 U.S.C.A. § 1114, 5107
(West 1991); 38 C.F.R. § 3.350 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The veteran’s service medial records show, in chronological
records of medical care dated in June 1982, October 1982, and
January 1984, that she complained of bilateral leg/shin pain.
No diagnosis was made. The veteran’s service medical records
are otherwise negative for complaints, diagnoses, or
treatment for problems involving the right leg including the
right knee.
Starting in April 1982, the veteran sought treatment for left
knee pain that was subsequently diagnosed as mild
chondromalacia (See medical board report dated in February
1985 and separation examination dated in March 1985)
Beginning in October 1982, her service medical records
include references to complaints of chronic pelvic pain and
diagnoses of chronic uterine adnexal tenderness secondary to
chronic pelvic inflammatory disease (PID). The veteran’s
service medical records show that she continued to seek
treatment for these problems for the rest of her military
service. In October 1982, she underwent a diagnostic
laparoscopy that ruled out an ectopic pregnancy and revealed
a right corpus hemorrhagicum cyst, which was inactive.
Thereafter, in February 1983, the veteran underwent another
diagnostic laparoscopy as well as a mini-laparotomy with
lysis of cul-de-sac adhesion. Additionally, in November
1983, she was hospitalized for a short period for observation
after a miscarriage.
At a June 1985 VA examination, the veteran complained of
chronic abdominal and left leg pain. The veteran did not
report right knee pain or disability. The examiner did not
observe a right knee disability. The diagnoses were
recurrent PID and residual pain subsequent to a stress
fracture of the left tibia.
At the veteran’s VA examination, dated in May 1988, she
complained of bilateral knee pain and pelvic pain. The
veteran also asserted that her right knee pain was caused by
the extra strain placed on that knee due to the problem with
her left knee. On examination the veteran’s left knee was
reported as normal. X-rays were negative bilaterally. The
diagnosis was left knee chondromalacia. The examiner then
reported that the veteran’s history of treatment for her
gynecological disorder as outlined above. After conducting a
pelvic examination the veteran was diagnosed with recurrent
acute PID and possible vaginitis.
VA outpatient records, dated from August 1990 to January
1991, which were available when the RO denied service
connection in August 1991, show, in substance, the veteran
complaints, diagnoses, and treatment for right knee pain,
effusion, and swelling. The diagnosis was chondromalacia.
The veteran wore a right knee support device (See VA
outpatient records dated in September 1990 and January 1991).
The records also show that the veteran was seen several times
for pain and vaginal discharge that were attributed to PID.
VA records and private treatment records from Dr. Curtis,
dated from about December 1992 to August 1995, were received
by the RO. These records show, in substance, the veteran’s
complaints and treatment for pelvic pain, vaginal discharge
and itching, persistent spotting, heavy menses, severe cramps
during menstruation, and prolonged menses. These records
also show the results of pap smears from 1987 to 1995. The
pap smears for December 1992 and July 1993 where negative.
However, her pap smear in 1987, September 1994, and May 1995,
reported abnormalities. The abnormalities included reactive
epithelial cellular changes associated with inflammation and
squamous metaplasia.
Moreover, a record dated in February 1993 indicates that the
veteran had a positive pregnancy test. A September 1993
operative report from Dr. Curtis showed that the veteran
underwent a dilatation and curettage of the uterus. The
veteran’s history was reported to include a spontaneous
abortion in February 1993 and heavier than normal menses.
Upon examination the veteran had right adnexal pain to the
right with uterine motion and tenderness on palpation with
pressure on the cervix. The examiner then reported that
these findings were chronic. Dr. Curtis noted that the
veteran had been hospitalized on multiple occasions for
probable PID. During the procedure it was noted that the
veteran’s uterus was of normal size, shape, and contour.
There were no palpable masses. The endometrial contour
appeared to be normal. The diagnoses were chronic PID and
menorrhagia.
Furthermore, a September 1993 VA echogram reported that the
veteran’s uterine size had not changed since her last
examination. Lastly, these records also show that the
veteran had bilateral ovarian cysts (See July 1995 VA pelvic
ultra sound and August 1995 VA pelvic echography)
At the veteran’s VA joint examination, dated in August 1993,
the veteran reported problems with both knees since 1982
after she ran into a wall. The veteran then reported that
both knees “crack”, hurt, and have fluid on them. On
examination, the veteran’s left knee was reported as stable
with no warmth, redness, tenderness, or crepitus. The range
of motion of her left knee was flexion of 130 degrees and
extension of 0 degrees. The range of motion of her right
knee was flexion of 125 degrees and extension of 0 degrees.
X-rays found no evidence of degenerative joint disease. The
diagnosis was bilateral knee pain.
At the veteran’s VA gynecological examination, dated in
August 1993, the veteran reported pelvic pain, as well as
recurrent vaginal discharge. On examination no prolapse was
seen, her uterus was not enlarged, and the cervix was normal.
Moreover, her ovaries were present, there were no masses, and
there was no evidence of atrophy of the ovaries. The
examiner also noted that due to claims of pain the veteran
refused to allow a complete internal examination to be
completed. The diagnoses were “pelvic pain etiology” and
“? infertility.” It was noted that she had a history of a
successful pregnancy.
At the veteran’s personal hearing, conducted in December
1995, she testified that she first began noticing a problem
with her right knee in 1985 when she had fluid on the knee
which needed draining. Moreover, the veteran testified that
she had her right knee drained again in 1986 and 1987.
Additionally, the veteran reported that in 1985 she was in
the Army Reserves. Moreover, the veteran testified that she
believed that her right knee disability was caused by the
additional strain put on it because of her service-connected
left knee chondromalacia. Her symptoms were pain, swelling,
and crepitus. The veteran also reported that she wore a
sleeve on her right knee, was currently being fitted for a
brace, and she took Motrin for pain.
In regards to her gynecological disorder she testified that
her disorder manifested itself through heavy menstrual
bleeding and severe cramps for two weeks every month. She
testified that she took Motrin for the pain. The veteran
further testified that the only treatment received from VA
for her heavy bleeding was that they gave her a “DNC”.
However, the “DNC” did not help reduce her bleeding.
Lastly, the veteran testified that her claim for loss of use
of a creative organ arises from her laparotomies in service
in 1980, 1982, and 1983, which caused her uterus to become
“twisted” and rendered her infertile. The veteran further
testified that, despite her service physician telling her she
was infertile she thereafter had a child in service and this
child is now 16 years old. The veteran then stated that her
private physician, Dr. Curtis, had treated her since 1988 or
1989. She testified that Dr. Curtis told her in 1993 that
she could not have children.
In January 1996, a VA examiner, after reviewing the record,
noted that the veteran’s knees exhibited bilateral crepitus
and chondromalacia. The examiner opined that there was no
cause and effect relationship between the veteran’s service-
connected left knee chondromalacia and her right knee
disability. This examiner also noted that she had persistent
pelvic tenderness possibly related to PID. However, the
examiner opined that this diagnosis was not entirely
supported by the medical records. He indicated that the
veteran’s uterus was normal.
Right Knee Claim
As previously noted, a claim of service connection for a
right knee disability was denied by the RO in a decision
entered in August 1991. In a letter, dated in September
1991, the veteran was notified at her last address of record
of the decision and of her procedural and appellate rights.
The veteran did not appeal this denial. See 38 C.F.R.
§ 20.302. Consequently, her claim may now be reopened only
if new and material evidence is submitted. 38 U.S.C.A.
§ 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1
Vet.App. 140, 145 (1991); Evans v. Brown, 9 Vet.App. 273
(1996).
In a case such as this, the Board must address the issue of
new and material evidence in the first instance because it
goes to the Board’s jurisdiction to reach the underlying
claim and adjudicate the claim de novo. See Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8
Vet.App. 1 (1995). If the Board finds that no such evidence
has been offered, that is where the analysis must end, and
what the RO may have determined in this regard is irrelevant.
Id. Further analysis, beyond consideration of whether the
evidence submitted in the effort to reopen is new and
material, is neither required nor permitted. Id. at 1384.
Said another way, any finding entered when new and material
evidence has not been submitted “is a legal nullity.”
Butler v. Brown, 9 Vet.App. 167, 171 (1996) (applying an
identical analysis to claims previously and finally denied,
whether by the Board or by the RO).
The Board notes that new evidence is evidence that is not
merely cumulative of other evidence on the record. See
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is
material where it is relevant to and probative of the issue
at hand and where it is of sufficient weight or significance
(assuming its credibility, see generally, Justus v. Principi,
3 Vet.App. 510, 513 (1992)) that there is a reasonable
possibility that the new evidence, when viewed in the context
of all the evidence, both new and old, would change the
outcome. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v.
Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. at 174.
Moreover, the Court in Allen v. Brown, 7 Vet.App. 439 (1995),
held that, when a veteran's service-connected disability
aggravates, but is not the proximate cause of, a non-service-
connected disability, the veteran is entitled to compensation
for that increment in severity of the non-service-connected
disability attributable to the service-connected disability.
This is a significant ruling because it is in part what the
veteran argues in her case.
In the veteran’s case evidence available prior to the August
1991 denial included service medical records, VA examination
and VA outpatient records, dated from April 1985 to July
1991, and the veteran’s written statements filed with the RO.
The veteran’s service medical records, as outlined above,
were negative for complaints, diagnoses, or treatment for a
right knee disability. Additionally, the VA examination and
VA outpatient records showed the veteran’s current
complaints, diagnoses, and treatment for a right knee
disability beginning in May 1988. The Board observes that
the foregoing records did not contain a statement as to the
origin or etiology of the veteran’s right knee disability.
Lastly, through her written statements to the RO the veteran
alleged, in substance, that her current right knee disability
was caused by her service-connected left knee chondromalacia.
A review of the evidence received since the August 1991
denial reveals that the veteran has submitted additional
evidence in the form of written statements to the RO,
testimony at a personal hearing at the RO in December 1995,
VA outpatient records, dated from December 1992 to July 1995,
and VA examination reports, dated in August 1993 and January
1996.
The Board has considered the veteran's arguments as set forth
in her written statements to the RO and through her testimony
at her personal hearing (namely that her current right knee
disability was caused by or made worse by her service-
connected left knee chondromalacia). First, the Board finds
that the veteran’s statements do not provide the Board with
more details concerning the alleged etiology of her right
knee disability than was of record at the time of the final
August 1991 decision. The allegations put forth in these
documents and testimony are merely duplicative of her prior
statements. Therefore, they are not new. Moreover, her
statements and testimony are not material evidence because
the veteran is not competent to diagnose or express an
opinion as to the time of onset or etiology of her right knee
disability. Likewise, she is not competent to say that the
right knee is worse because of the left. While she is
competent to provide information as to the symptoms she was
experiencing during service and after service, her belief
that she had a right knee disability for which service
connection should be granted is not probative evidence.
Someone qualified by knowledge, training, experience, skill,
or education that the veteran is not shown to possess must
provide evidence requiring medical knowledge, such as medical
diagnosis or opinion as to etiology. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Therefore, the lay
assertions regarding medical diagnosis and causation or
aggravation do not suffice to reopen the claim under
38 U.S.C.A. § 5108. See, Moray v. Brown, 5 Vet.App. 211, 214
(1993).
Additionally, VA outpatient records, dated from December 1992
to July 1995, and VA examination reports, dated in August
1993 and January 1996, have been received by the RO. They
show, in substance, the veteran’s current complaints,
diagnoses, and treatment for a right knee disability.
However, the Board finds that, even though these records were
not physically of record at the time of the final August 1991
decision, they are neither new nor material. They are not
new because a diagnosis of a current right knee disability
was of record at the time of the final August 1991 decision.
They are not material because they do not show that the
veteran had a right knee disability in service, that her
right knee disability is attributable to her period of
military service, that she has had continued right knee
symptoms since service, or that her right knee disability was
caused or made worse by her service-connected left knee
chondromalacia. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 &
Supp. 1997); 38 C.F.R. §§ 3.307, 3.309, 3.385 (1997); Allen
v. Brown, 7 Vet.App. 439 (1995). In fact, the January 1996
VA examiner opined that there was no cause and effect
relationship between the veteran’s service-connected left
knee chondromalacia and right knee disability.
In conclusion, none of the additional evidence associated
with the claims file since the August 1991 decision gives
rise to a reasonable possibility of changing the outcome of
the previously denied claim. Accordingly, the veteran’s
newly submitted evidence does not constitute new and material
evidence to reopen her claim of service connection for a
right knee disability. 38 U.S.C.A. §§ 5108, 7105 (West
1991); 38 C.F.R. §§ 3.104(a), 3.156 (1997).
Absent the presentation of new and material evidence, the
Board does not have jurisdiction to review the former
disposition. Butler v. Brown, 9 Vet.App. 167 (1996). Even
consideration of whether the claim is well grounded and
whether VA should assist the veteran under 38 C.F.R. § 5107
(West 1991) is not permitted. Id.
PID Claim
The Board finds that the veteran's claim for an increased
rating for PID is well grounded within the meaning of
38 U.S.C.A. § 5107(a). The United States Court of Veterans
Appeals (Court) has held that, when a veteran claims that a
service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992).
In general, disability evaluations are assigned by applying a
schedule of ratings that represent, as far as can practicably
be determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 1991). Although regulations require
that disability be viewed in relation to its whole recorded
history, 38 C.F.R. §§ 4.1, 4.2, where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, it is the present level of
disability which is of primary concern. Francisco v. Brown,
7 Vet.App 55 (1994).
The Board notes that the veteran’s service-connected PID was
not specifically listed under applicable rating criteria in
effect when her claim for an increase was adjudicated in
1993. See 38 C.F.R. § 4.116a (1992). Therefore, by decision
entered in July 1988, the RO determined that the veteran’s
symptoms should be rated by analogy to displacement of the
uterus under Diagnostic Code 7622. 38 C.F.R. § 4.20 (when an
unlisted condition is encountered it will be permissible to
rate under a closely related disease or injury in which not
only the functions affected, but the anatomical location and
symptomatology are closely analogous). However, the Board
notes that, during the pendency of the veteran’s appeal the
provisions 38 C.F.R. § 4.116 were amended effective in May
1995. See 60 Fed.Reg. 19855 (1995).
The Court has held that, where the law changes after a claim
has been filed or reopened, but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant will be applied unless Congress
provides otherwise. Karnas v. Derwinski, 1 Vet.App. 308
(1990). As amended, 38 C.F.R. § 4.116 now provides under
Diagnostic Code 7614 that PID is specifically rated. Under
new Diagnostic Code 7614, PID is rated as noncompensable if
the symptoms do not require continuous treatment. A 10
percent evaluation is assigned for symptoms that require
continuous treatment. A 30 percent evaluation is assigned
where symptoms are not controlled by continuous treatment.
38 C.F.R. § 4.116, Diagnostic Code 7614.
The Board observes that the evidence of record shows that the
veteran has complained of chronic pelvic pain, vaginal
discharge and itching, persistent spotting, heavy menses,
severe cramps during menstruation, and a prolonged period of
menses. A review of the VA outpatient records and private
treatment records reveals that, from June 1990 to August
1995, she repeatedly sought treatment for these problems.
Moreover, in a September 1993 operative report from Dr.
Curtis it was reported that she had had numerous surgical
procedures, that she had heavier than normal menses, that her
gynecological disorders were chronic, and that she had been
hospitalized on multiple occasions for PID. The diagnoses
were chronic uterine adnexal tenderness, chronic PID, and
menorrhagia. Additionally, the January 1996 VA examiner
reported that the veteran had had persistent pelvic
tenderness possibly related to PID. Although he opined that
this diagnosis was not entirely supported by the medical
records, the symptoms appear to be characteristic of the
problems for which the veteran has been treated for a number
of years and for which service connected has been granted.
By resolving doubt in the veteran’s favor, and with
application of 38 C.F.R. § 4.7 (1997), the Board finds that
an increased (30 percent) rating is warranted under the new
rating criteria which became effective in May 1995. In
short, the veteran has had recurring problems that have not
been effectively controlled with treatment. Even after
several operative procedures, she continues to have pain,
discharge, and menorrhagia. It is the absence of control of
such symptoms that justifies the award of an increased rating
under the new criteria. Diagnostic Code 7614. Approximately
five years of treatment records is more illustrative of the
veteran’s problems than a single VA examination or a single
review of records such as the January 1996 report. The
conclusion the Board reaches from a review of these VA
treatment records is that her symptoms appear to be
uncontrolled. Therefore, the Board finds that the veteran’s
symptoms suggest difficulties that more nearly approximate
the criteria for an increased (30 percent) rating. 38 C.F.R.
§ 4.116 (1997). This is the highest schedular evaluation
assignable for PID, and consequently, a higher rating is not
warranted. Absent the need to remove the uterus or ovaries
on account of service-connected disability, a higher rating
is not assignable. Id.
The Board also notes that the veteran has scarring as a
result of surgical procedures, but there is no indication in
the record that such scarring would warrant the assignment of
a compensable rating under any part of 38 C.F.R. § 4.118
(1997). Therefore, a rating greater than 30 percent is not
warranted.
Turning to the criteria in effect when the veteran first
filed her claim for an increased rating, the Board notes that
problems such as cervicitis, salpingitis, oophoritis, etc.
warranted the assignment of a 30 percent rating if the
condition was “severe” as opposed to “moderate” or
“mild.” Additionally, even if PID were rated as analogous
to displacement of the uterus, “severe” disability with
marked displacement and frequent or continuous menstrual
disturbances would have to be shown in order to assign a 30
percent rating. 38 C.F.R. § 4.116a (1994).
In the veteran’s case, she has had regularly recurring
problems with pain, discharge, etc. which have not been
controlled with treatment; however, her problems have not
been characterized as “severe.” Indeed, there have been
times, such as in November 1994 and June 1995 when the
available record shows that she had no complaints. On a
continuum from mild to severe, such an indication of
frequency, or rather infrequency, is not indicative of the
most severe case. Indeed, no examiner has entered such an
impression regarding the veteran’s problems. Therefore, an
increased rating under the old criteria is not warranted.
Id. This is so because there is no indication in the record
that her problem is more than moderately disabling.
Special Monthly Compensation
Special monthly compensation may be granted for loss, or loss
of use, of a creative organ. 38 C.F.R. § 3.350(a)(1) (1997).
In this case, in order to grant special monthly compensation
based on loss of use of a creative organ, the evidence must
demonstrate that the veteran has lost the use of one or both
ovaries or other creative organ. 38 U.S.C.A. § 1114(k) (West
1991); 38 C.F.R. § 3.50(a)(i) (1997).
A review of the record on appeal shows that, although the
veteran underwent a number of operations in service and
thereafter, she still has both her ovaries and her uterus has
been evaluated as being normal. Additionally, a review of
the entire record on appeal is devoid of any medical
statement that the veteran, due to her service-connected
gynecological disorder, is now infertile. The record shows
that the veteran testified that, while a physician in service
told her that she was infertile, she still became pregnant
and had a child. Additionally, even in February 1993, it was
noted that she had become pregnant, but later experienced a
spontaneous abortion.
Although the veteran testified at her personal hearing that
Dr. Curtis told her in 1993 that she could not have children,
a review of available records, did not contain such a medical
statement. Additionally, while infertility was questioned by
a VA examiner in August 1993, there is no indication that
this was proved upon further evaluation. Indeed, whenever
examination of the ovaries or uterus was undertaken, no
specific abnormality indicative of loss of use was reported.
At one point in July 1995, cysts of the ovaries were noted
and the uterus was slightly enlarged, but there was no
indication that such problems resulted in loss of use of any
creative organ. Consequently, the Board finds that the
preponderance of the evidence is against this claim.
The Board has also carefully considered the contentions of
the veteran and, inasmuch as the veteran is offering her own
medical opinion and diagnosis, her opinion is not probative.
See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The
veteran's assertions of a medical diagnosis alone are not
probative because lay persons (i.e., persons without medical
expertise) are not competent to offer medical opinions.
Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown,
5 Vet.App. 91 (1993). While speculation might lead one to
say that gynecological problems such as the veteran’s might
lead to fertility problems, the salient point to be made in
this case is that such a result has not been shown.
38 U.S.C.A. § 5107 (West 1991).
ORDER
Absent the presentation of new and material evidence the
appeal to reopen the veteran’s claim of service connection
for a right knee disability is denied.
An increased (30 percent) rating for PID is granted under the
revised rating criteria effective May 22, 1995.
A claim for special monthly compensation based on the loss of
use of a creative organ is denied.
REMAND
As for the claim for an increased rating for the left knee,
the Board notes that the veteran’s disability has been rated
by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5257.
This code contemplates impairment of the knee manifested by
subluxation or lateral instability. However, the Board also
notes that the RO, in August 1985, included consideration of
limitation of motion as a manifestation of the service-
connected disability (the veteran’s left knee was rated as
arthritis under Diagnostic Code 5003). Subsequently, it also
appears that the RO considered both instability and
limitation of motion in evaluating the veteran’s left knee
problem. Since the RO has indicated that limitation of
motion is to be rated as part of the veteran’s service-
connected disability, further evidentiary development is yet
required.
When rating musculoskeletal disability, it should be
remembered that “a part which becomes painful on use must be
regarded as seriously disabled.” 38 C.F.R. § 4.40 (1996).
The difficulty in rating functional loss due to pain on use
was recognized by the United States of Court of Veterans
Appeals (Court) in the case of DeLuca v. Brown, 8 Vet.App.
202 (1995). There, the Court noted that the VA examination
relied upon to rate the veteran’s disability had merely
included findings as to the range of motion at the time of
the examination without accounting for factors enumerated in
§ 4.40. The Court cited the case of Bierman v. Brown, 6
Vet.App. 125, 129 (1994) in which 38 C.F.R. § 4.10 was quoted
for the proposition that a rating examination must include a
“full description of the effects of disability upon the
person’s ordinary activity.” DeLuca, at 206 (emphasis
added). In order to effectuate this requirement, the Court
explained that, when the pertinent diagnostic criteria
provide for a rating on the basis of loss of range of motion,
determinations regarding functional loss are to be
“‘portray[ed]’ (§ 4.40) in terms of the degree of additional
range-of-motion loss due to pain on use or during flare-
ups.” Id. An examination to obtain such evidence is
required.
It should also be pointed out that VA General Counsel has
recently addressed the question of multiple ratings when
evaluating knee disabilities. VAOPGCPREC 23-97 (July 1,
1997). It was specifically held that arthritis and
instability of the knee may be rated separately under
Diagnostic Codes 5003 and 5257. Such an opinion suggests
that separate ratings may be awarded for limitation of motion
and instability. If so, any evaluation of the veteran’s knee
must include consideration of this principle, whether the
veteran experiences arthritis due to service-connected
disability or not. This issue is therefore REMANDED for the
following actions:
1. The veteran should be given an
opportunity to supplement the record
and/or identify all sources of treatment
for her left knee. The RO should assist
the veteran in this endeavor by seeking
copies of all records from the sources
she identifies.
2. The veteran should be scheduled for a
VA orthopedic evaluation. The examiner
should review the claims file, examine
the veteran and provide findings that
take into account all functional
impairments identified in 38 C.F.R.
§§ 4.40, 4.45 (1996), including pain,
incoordination, weakness, fatigability,
abnormal movements, etc. The examiner
should identify each functional debility
legitimately experienced by the veteran.
Functional loss due to such difficulties
should be described in terms of
additional range-of-motion loss beyond
that which is clinically observed. See
DeLuca, supra. Radiographic studies of
the veteran’s knee should be made, and
the examiner should say whether the
veteran has arthritis due to service-
connected disability. All findings,
opinions and bases therefor should be set
forth in detail.
3. The RO should undertake any
additional development suggested by the
examiner’s findings and opinions, or lack
thereof. Consideration should be given
to the principles enunciated in
VAOPGCPREC 23-97. If the benefit sought
is denied, a supplemental statement of
the case should be issued.
The veteran and her representative should be given an
opportunity to respond to the supplemental statement of the
case. Thereafter, the claims file should be returned to this
Board for further appellate review. No action is required of
the veteran until she receives further notice. The purpose
of this remand is to procure clarifying data and to comply
with governing adjudicative procedures. The Board intimates
no opinion, either legal or factual, as to the ultimate
disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1996).
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